LEGISLATORS ON EXECUTIVE-BRANCH BOARDS ARE ... › system › files › faculty › ... ·...

LEGISLATORS ON EXECUTIVE-BRANCH BOARDS

ARE UNCONSTITUTIONAL, PERIOD

Douglas Laycock*

Forthcoming in

WILLIAM & MARY BILL OF RIGHTS JOURNAL

volume 28

ABSTRACT

The Virginia General Assembly has enacted increasingly

frequent exceptions to its statute prohibiting legislators from

serving on executive-branch boards. But these exceptions are

clearly unconstitutional. Appointing legislators to executive-

branch boards violates any meaningful conception of separation

of powers. The only purpose is to intrude legislative influence

into the daily workings of the executive branch.

Such appointments violate Virginia’s Separation of Powers

Clause as interpreted by the Virginia Supreme Court. They

even more clearly violate what I will call the Personal

Separation Clause, which prohibits any person from exercising

the powers of two branches of government at the same time. The

*Robert E. Scott Distinguished Professor of Law and Professor of

Religious Studies, University of Virginia, and Alice McKean Young Regents

Chair in Law Emeritus, University of Texas. I am grateful to A.E. Dick

Howard for helpful comments on an earlier draft and to James Hasson for

research assistance. All websites cited were last visited on September 9,

2019.

An earlier version of this Article circulated anonymously. I wrote

anonymously because my wife was at that time President of the University

of Virginia. I was unwilling to run the risk that any legislator or government

official might blame her or the University for what I wrote, or that any such

official might assume that she or the University put me up to writing it. I

kept the project entirely secret from her; I wanted her to have not just

plausible deniability, but actual, truthful, and absolute deniability. If anyone

had asked her about this Article while she was President, she would have

had no idea what they were talking about. No one had even brought the

underlying issue to her attention during her time in office.

2 WILLIAM & MARY BILL OF RIGHTS JOURNAL Vol. 28

federal courts and eleven state supreme courts—every court to

consider the question except South Carolina—have held that

legislators cannot simultaneously serve in the executive branch.

The South Carolina precedent is irrelevant elsewhere, because

the state has a unique constitutional system in which the

legislature is allowed outsize influence on the other branches.

This article focuses on the particular case of Virginia and the

boards of its public universities. But the principles developed

apply to all executive-branch boards and to all the states except

South Carolina.

* * * * *

Introduction

A Virginia statute makes legislators categorically “ineligible

to serve on boards, commissions, and councils within the

executive branch of state government who are responsible for

administering programs established by the General Assembly.”1

But with increasing frequency, the General Assembly has

enacted exceptions to this policy. There is a general exceptions

for bodies “engaged solely in policy studies or commemorative

activities,”2 and perhaps such bodies need not be in the

executive branch at all. But the Assembly has also enacted

exceptions for twenty-one specific boards and commissions,

many of which clearly have executive authority.3 This list of

exceptions is a miscellany with no obvious pattern, but it

includes six educational boards, one of which is a Board of

Visitors.4 The legislation creating the Board of Visitors of the

Virginia School for the Deaf and Blind explicitly acknowledges

that it is in the executive branch,5 and it requires that four

legislators serve on the eleven-member board.6 There are

1VA. CODE ANN. § 2.2-2101 (Supp. 2019). 2Id. 3See id. 4See id. 5VA. CODE ANN. § 22.1-346.2(A)(2016). 6Id. § 22.1-346.2(B).

2019 LEGISLATORS ON EXECUTIVE-BRANCH BOARDS 3

rumors in Richmond that some legislators would like to put

legislators on the Boards of Visitors of other public universities

in the Commonwealth.

Such appointments violate the separation of powers and are

unconstitutional. I reach this conclusion on the basis of the clear

text of the Virginia Constitution, on the decisions of the Virginia

Supreme Court, on the practical consequences, and on decisions

interpreting separation-of-powers provisions in federal law and

in other states. The question is not close. Much of the analysis

here would apply to the constitutional law of nearly every state,

and to any board or commission in the executive branch, but my

focus will be on the Boards of Visitors of Virginia’s public

universities.

I. The Separation of Powers Clauses

There are two Separation of Powers Clauses in the Virginia

Constitution. Article I, section 5, titled “Separation of

legislative, executive, and judicial departments,” requires

[t]hat the legislative, executive, and judicial departments

of the Commonwealth should be separate and distinct;7

And article III, section 1, titled “Division of Powers,”

provides,

The legislative, executive, and judicial departments shall

be separate and distinct, so that none exercise the powers

properly belonging to the others, nor any person exercise

the power of more than one of them at the same time.8

Article I of the Constitution is the Bill of Rights,9 and Article

I, section 510 is derived, with modest changes, from the

7VA. CONST. art. I, § 5. 8Id. art. III, § 1 (emphasis added). 9Id. art. I. 10Id. art. III, § 5.


Declaration of Rights adopted on June 12, 1776.11 Article III, §

1 was part of the original Virginia Constitution adopted by the

same body on June 29, 1776.12 Beginning with the Constitution

of 1851, the Declaration of Rights has been incorporated into the

body of the Constitution as article I,13 thus producing two

separate but consistent provisions on separation of powers.

The Virginia Supreme Court has enforced these clauses with

considerable vigor, but it has not closely parsed the language.14

In addition to stating the basic principle twice, the text of the

article III clause actually states two related and mutually

reinforcing prohibitions. I will refer to article I, section 5, and to

the part of article III, section 1 that I have put in roman type,

as the Departmental Separation Clauses. They require that the

three “departments,” or branches, be kept separate and

distinct.15 I will refer to the italicized part of article III, section

1 as the Personal Separation Clause; it prohibits any person

from exercising the power of two branches at the same time.16

Appointing a legislator to a university’s Board of Visitors

would legislatively interfere with executive-branch functions,

with no necessity for doing so, thus violating the Separation of

Powers Clauses as the Supreme Court has interpreted them.17

Even more clearly, such an appointment would result in the

same person exercising both legislative and executive functions

at the same time, with no justification whatever, thus violating

the Personal Separation Clause.

These restrictions are not mere formalities. They are

11DECLARATION OF RIGHTS, 1776, § 5, reprinted in 10 SOURCES AND

DOCUMENTS OF UNITED STATES CONSTITUTIONS 49 (William F. Swindler ed.

1979) [hereinafter SWINDLER]. 12VA. CONST. of 1776, reprinted in SWINDLER, supra note 11, at 52. There

are no numbered articles or sections in this constitution. See id. The

Separation of Powers Clause is the first substantive provision, immediately

following a preamble. See id. 13VA. CONST. of 1851, art. I, reprinted in SWINDLER, supra note 11, at 68–

71. 14See infra Part III. 15See supra notes 7-8 and accompanying text. 16See supra note 8 and accompanying text. 17See infra Part III.


designed to protect the people by preventing the concentration

of power in one or a few individuals, or in any one branch of

government. They respond to the insight that power corrupts,

and that the greater and more concentrated the power, the

greater the tendency to corruption.18 The generation that wrote

the Virginia and federal constitutions followed Montesquieu in

believing that “when the legislative and executive powers are

united in the same person, or in the same body of magistrates,

there can be no liberty.”19 James Madison, who served in an

apparently minor role on the committee that drafted Virginia’s

Separation of Powers Clauses,20 later wrote in Federalist 47 that

“[t]he accumulation of all powers, legislative, executive, and

judiciary, in the same hands, whether of one, a few, or many,

and whether hereditary, self-appointed, or elective, may justly

be pronounced the very definition of tyranny.”21

The initial implementation of this insight, in Virginia and

elsewhere, overreacted to the abuses of George III, putting too

much power in legislators and not enough in the executive.22

But Americans soon recognized that legislative power was also

prone to abuse;23 both Madison and Jefferson soon complained

that Virginia had failed to adequately implement its

commitment to separation of powers and that the legislature

18See GORDON S. WOOD, THE CREATION OF THE AMERICAN REPUBLIC

1776–1787, at 134-35 (2d ed. 1998). 19 CHARLES DE MONTESQUIEU, THE SPIRIT OF THE LAWS, reprinted in 38

GREAT BOOKS OF THE WESTERN WORLD 70 (Hutchins ed., 1952)). See also

Edward H. Levi, Some Aspects of Separation of Powers, 76 COLUM. L. REV.

372, 373-74 (1976)(describing the founding generation’s reliance on

Montesquieu); WOOD, supra note 18, at 150–51 (surveying revolutionary

fears of concentrated power). 20See JEFF BROADWATER, JAMES MADISON: A SON OF VIRGINIA & A

FOUNDER OF THE NATION 8 (2012)(noting that “Madison served in

Williamsburg on a committee appointed to draft a new constitution and a bill

of rights for Virginia,” but that “George Mason did most of the work”).

Madison’s principal interest and contribution, not surprisingly, was on the

religious-liberty provision. Id. at 8–9. 21THE FEDERALIST NO. 47, at 249 (James Madison)(George W. Carey &

James McClellan eds., 2001)[hereinafter FEDERALIST 47]. 22See WOOD, supra note 18, at 135–43; Levi, supra note 19, at 374. 23See WOOD, supra note 18, at 403–13.


had too much control over, and too often interfered with, the

other branches.24 A wave of constitutional reform beginning in

the 1780s brought the implementation of separation of powers

more fully into conformity with the stated principle, separating

and limiting the power of each of the three branches,

legislatures included, more explicitly and in greater detail.25

These reforms did not take hold in Virginia until a good bit

later—most obviously, the legislature elected the governor until

the Constitution of 1851—but they did take hold.26

Even at the height of the over-empowered legislatures and

under-powered executives, there seems to have been consensus

that separation of powers at least meant that no person could

hold two offices simultaneously.27 Virginia’s Personal

Separation Clause states the part of that prohibition rooted in

separation of powers.28 It does not explicitly prohibit a person

from simultaneously holding two offices in the same branch, but

it does explicitly prohibit any person from simultaneously

holding offices in two different branches.29

Separation of powers protects the independence of each

branch of government from interference by the others. These

principles have many important applications, but none more

important than to the Commonwealth’s public universities.

Universities are places where students and faculty experiment

with ideas, pursue ideas both old and new, and sometimes

pursue an idea too far or into a dead end. Faculty research

drives new technological developments, new policy solutions,

24See THOMAS JEFFERSON, NOTES ON THE STATE OF VIRGINIA 120–21

(1787); WOOD, supra note 18, at 451 (quoting a James Madison statement

from 1784). 25See WOOD, supra note 18, at 446–53; Levi, supra note 19, at 374–78. 26Compare VA. CONST. of 1851, art. V, § 2, reprinted in SWINDLER, supra

note 11, at 82 (“governor shall be elected by the voters”), with VA. CONST. of

1830, art. IV, § 1, reprinted in SWINDLER, supra note 11, at 64 (“governor, to

be elected by the joint vote of the two houses of the general assembly”), and

VA. CONST. of 1776, reprinted in SWINDLER, supra note 11, at 53 (“[g]overnor,

or chief magistrate, shall be chosen annually by joint ballot of both Houses”). 27See WOOD, supra note 18, at 156. 28VA. CONST. art. III, § 1. 29See id.


and new economic progress. New ideas and serious research

depend on academic freedom and individual initiative. Some of

these ideas, and some of this research, will be controversial. The

best faculty, and the best students, are always free to go

elsewhere, to private universities or to public universities in

states that are more supportive or less prone to interfere. Direct

political interference, especially when motivated by short-term

political goals or issues, can do serious damage.

Public universities require a delicate balancing of the need

for public accountability and some level of government control

with the preservation of institutional independence and

academic control of academic matters. Virginia, and most other

states, have attempted to achieve that balance by vesting

responsibility in boards that are largely independent once

elected or appointed, and that under normal conditions will be

sympathetic to the university’s mission and respectful of the

difference between broad policy decisions to be made at board

level and academic matters best left to the faculty and to

academic administrators. The greater the intrusion of partisan

politics, the greater the threat to institutional independence and

to academic excellence.

Few measures would be more calculated to introduce

partisan politics than the appointment of a legislator to a

university’s Board of Visitors. Legislators must run for re-

election at frequent intervals. They owe duties to their political

party and to their separate branch of government. Each

legislator shares in the awesome power to make laws for the

entire Commonwealth, including for its universities. No

legislator may augment that power by also sharing in the

executive-branch power to administer those universities.

II. The Boards of Visitors

The Boards of Visitors of Virginia’s public universities are

plainly state agencies in the executive branch, and courts have


treated this fact as obvious, both in Virginia30 and elsewhere.31

The General Assembly’s Joint Legislative Audit and Review

Commission has also recognized that these boards are part of

the executive branch.32 The Governor appoints persons to the

Boards of Visitors,33 and the Governor can remove Visitors for

“malfeasance, misfeasance, incompetence, or gross neglect of

duty.”34 This gubernatorial appointment and removal power

plainly locates these boards in the executive branch.

These boards exercise executive authority and perform

executive functions. They supervise and administer large

institutions with substantial assets, many employees, and many

students, and in some cases, hospitals and medical practices.

They are statutorily authorized to manage their institution’s

funds, appoint its President and its faculty, fix salaries and

tuition, and buy and sell real estate.36 They are authorized to

regulate parking and traffic, the hiring and firing of employees,

and the admission, discipline, and expulsion of students.37 They

are instructed to manage their institution’s endowment38 and

are given many powers necessary for the management of

medical centers.39 They have law enforcement responsibilities;

they are authorized to establish a campus police department40

30See George Mason Univ. v. Floyd, 654 S.E.2d 556, 558 (Va. 2008)

(explaining why “[i]t is clear that GMU qualifies as an agency of the

Commonwealth”); James v. Jane, 282 S.E.2d 864, 865 (Va. 1980) (describing

Rector and Visitors of University of Virginia as “an agency of the

Commonwealth”); Collin v. Rector & Bd. of Visitors of the Univ. of Va., 873

F. Supp. 1008, 1013 (W.D. Va. 1995) (“The Board’s status under Virginia law

is the same as any other state agency.”). 31See, e.g., Galer v. Bd. of Regents, 236 S.E.2d 617 (Ga. 1977); Atty. Gen’l

ex rel. Cook v. Burhans, 7 N.W.2d 370, 371 (Mich. 1942). 32JOINT LEGIS. AUDIT & REVIEW COMM’N, ORGANIZATION OF THE

EXECUTIVE BRANCH IN VIRGINIA: A SUMMARY REPORT, H. DOC. NO. 44, at 1–

4, 35–36 (1984), http://jlarc.virginia.gov/pdfs/reports/Rpt61.pdf. 33See, e.g., VA. CODE ANN. § 23.1-2201(A) (2016)(University of Virginia). 34Id. § 23.1-1300(C) (Supp. 2019). 36Id. § 23.1-1301 (Supp. 2019). 37Id. 38Id. § 23.1-2210 (2016). 39Id. §§ 23.1-2212 to -2213 (2016). 40Id. § 23.1-809 (2016).


or, at the Board’s election, require a contiguous local

government to provide police protection on campus.41 As clearly

as the governor’s appointment power, these executive powers

and functions mark them as agencies in the executive branch.

III. Decisions of the Virginia Supreme Court

The Virginia Supreme Court has repeatedly recognized that

some degree of “incidental encroachment” between the functions

of coordinate branches of government is “necessary and

permitted.”42 Any system of checks and balances requires some

intersection of the powers of the separate branches. The

legislature may delegate some of its authority to the executive

branch if it provides appropriate standards, and many of the

court’s separation-of-powers decisions are about the sufficiency

of the standards accompanying such delegations.43 But the

question here is not about one branch voluntarily delegating

some of its powers to another; it is the far more troubling issue

of one branch interfering with, or taking over, the functions of

another.

The Virginia Supreme Court has often said that the

separation of powers is violated “when one branch exercises the

‘whole power’ of another.”44 This “whole power” language

appears to have originated in Madison’s effort to defend the

federal Constitution against the anti-federalist charge that its

various checks and balances violated the separation of powers.45

He contrasted one branch exercising the whole power of another

with no branch having any partial agency, however limited, in

41Id. § 23.1-1301(B)(11) (Supp. 2019). 42Taylor v. Worrell Enters., Inc., 409 S.E.2d 136, 138 (Va. 1991). 43See, e.g., Elizabeth River Crossings OpCo, LLC v. Meeks, 749 S.E.2d

176 (Va. 2013) (upholding creation of agency to contract for construction of

tunnel and to negotiate tolls, and holding that tolls were user fees and that

legislature had not improperly delegated its power to tax). 442016 OP. VA. ATTY. GEN. 16-013, at 4 (quoting Winchester & Strasburg

R.R. v. Commonwealth, 55 S.E. 692, 693 (Va. 1906)), https://www.oag.state.

va.us/files/opinions/2016/McAuliffe_Opinion_28No_16-01329.pdf. 45FEDERALIST 47, supra note 21, at 250-52.


the work of any other—omitting the obvious and more relevant

intermediate possibilities of partial overlaps or checks of greater

or lesser degree.46 Not surprisingly, this “whole power”

language is misleading if taken literally. Significant exercises of

the powers of one branch by members of another are prohibited,

even though the invasion of the other branch is far less than

total. In practice, the Virginia Supreme Court has struck down

any undue or unjustified interference with one branch by

another.47

Thus the legislature cannot require that certain ordinances

enacted by a county board of supervisors be reviewed by a judge

to determine, after a judicial hearing, that the ordinance was

necessary.48 This requirement obviously did not transfer the

whole power of the board of supervisors to the judge. The judge

could not initiate legislation; he could review only what had

been legislatively enacted, and only with respect to certain

ordinances. But with respect to those ordinances, a significant

part of the legislative function—the power to finally determine

what new laws were necessary—was unconstitutionally

transferred to a judge.

Conversely, the legislature cannot exercise or interfere with

the judicial power. Thus the legislature cannot restrict the

judicial power to hold in contempt a litigant who lied to the court

about a scheduling matter.50 It did not matter that the contempt

power is only one small part of the judicial power, or that the

legislature had not interfered with most of the cases in which

judges hold litigants in contempt. Similarly, the legislature

cannot authorize or require the reopening of a final judgment

previously rendered by a court.51 And this was so even though

the reopening of judgments applied to only some cases and to

46See id. 47See immediately following discussion of cases, infra notes 48–58. 48Gandy v. Elizabeth City Cty., 19 S.E.2d 97, 99–100 (Va. 1942); see also

Bd. of Supervisors v. Allman, 211 S.E.2d 48, 55–56 (Va. 1975) (holding that

the court could invalidate discriminatory zoning, but could not itself rezone

the property, because zoning is a legislative function). 50See Carter v. Commonwealth, 32 S.E. 780 (Va. 1899). 51Ratcliffe v. Anderson, 72 Va. (31 Gratt.) 105, 106–11 (1878).


only a single issue within each case, and even though the

original power to decide the cases remained with the courts. It

was enough that an exercise of a significant part of the judicial

function—to decide when and whether to reopen final

judgments—had been directed by the legislature.52

The Virginia Supreme Court’s most recent and most

extensive decision on legislative interference with the executive

branch is the plurality opinion in Taylor v. Worrell

Enterprises.53 The court explained that “the proper inquiry

focuses on the extent to which [the challenged law] prevents the

Executive Branch from accomplishing its constitutionally

assigned functions.”54 “[W]here the potential for disruption is

present,” the court must “then determine whether that impact

is justified by an overriding need to promote objectives within

the constitutional authority” of the legislature.55

On the facts in Taylor, the court found that requiring the

Governor to make records of his long-distance phone calls

available under the Freedom of Information Act would violate

the separation of powers.56 The compelled disclosure of the data

“could provide a basis for public speculation” that would have a

“chilling effect on the Governor’s use of the telephone for

conducting the Commonwealth’s business” and thus impair his

ability to perform his duties.57 It was enough that disclosure

“impairs, though it does not completely destroy, the ability of

the executive to perform his constitutionally required duties.”58

Taylor did not repeat the “whole power” language from earlier

cases.

52Id. 53409 S.E.2d 136 (Va. 1991). This opinion was a plurality because the

other justices thought that the constitutional issue had not been preserved.

Id. at 140 (Carrico, C.J., concurring in result); id. at 140-44 (Hassell, J.,

dissenting). No justice dissented on the merits of the separation-of-powers

holding. 54Id. at 139 (quoting Nixon v. Adm’r of Gen. Servs., 433 U.S. 425, 443

(1977)). 55Id. (quoting Nixon, 433 U.S. at 443) (emphasis added). 56Id. at 137-39. 57Id. at 138. 58Id. at 139.


No decision of the Virginia Supreme Court directly addresses

the appointment of legislators to executive-branch boards or

offices. But it is obvious that a legislator appointed to a Board

of Visitors would quite literally exercise the whole power of a

Visitor. And far from there being any “overriding need” for such

appointments, there is no need whatever. It would not be a

statutory regulation of the board or of the university, passed by

both houses and signed by the governor. It would not be any

recognized form of check or balance. It would be a legislator

entirely taking over a position of authority in the executive

branch. Appointing legislators to Boards of Visitors would be a

wholly gratuitous and unjustified violation of the separation of

powers.

A legislator serving on an executive-branch board would

interfere with the executive far more directly than in Taylor v.

Worrell Enterprises. Such a legislator would inherently be

exercising executive functions. And he would be a constant

presence in the executive deliberations of all other members of

the Board. He would not just arouse curiosity about what they

discussed on the telephone—the facts of Taylor. He could carry

the substance of every discussion back to the legislature. This

would include discussions in executive sessions exempt from the

Freedom of Information Act—discussions of personnel,

litigation, and other confidential matters.59 He could express

legislative disapproval, or threaten legislative retaliation, with

respect to any matter at any time. He could influence the

Board’s discussions and debates on every issue before it. The

intrusion into the functions of a separate branch would be deep,

persistent, and continuous. As courts elsewhere have said, the

only purpose of putting him there would be to legislatively

interfere with the functions of the executive branch.60

59See generally VA. CODE ANN. § 2.2-3711 (Supp. 2019) (listing subject

matters for which public bodies may meet in closed sessions). 60See, e.g., Fed. Election Comm’n v. NRA Political Victory Fund, 6 F.3d

821, 826 (D.C. Cir. 1993), cert. dismissed, 513 U.S. 88 (1994); State ex rel.

Woods v. Block, 942 P.2d 428, 436-37 (Ariz. 1997).


IV. Decisions Elsewhere

The Virginia courts have not squarely addressed whether

legislators can be appointed to executive-branch boards, but

other courts have. These decisions are not binding in Virginia,

but they are persuasive. With the exception of South Carolina,

which has a unique and quite limited conception of separation

of powers,61 every court to consider the issue has held that it is

unconstitutional for a legislator to serve on an executive-branch

board.

A. Decisions Squarely on Point

The Supreme Court of North Carolina held that it violated

that state’s separation-of-powers clause to appoint legislators to

serve on the North Carolina Environmental Management

Commission, which performed executive functions.62 This

decision interpreted language substantially identical to that of

the Virginia Constitution: that the powers of the three branches

shall be “separate and distinct.”63 The opinion helpfully reviews

several opinions from other states.64

The Supreme Court of Appeals of West Virginia held that it

violated that state’s separation-of-powers clause to appoint

legislators to serve on the State Building Commission.65 West

Virginia appears to have copied its separation-of-powers

provision verbatim from article II of the Virginia Constitution

of 1851,66 which was substantially identical to the current

provision in article III, section 1.67

The Supreme Court of Georgia held that it violated that

61See infra notes 111-113 and accompanying text. 62State ex rel. Wallace v. Bone, 286 S.E.2d 79, 81-89 (N.C. 1982). 63Compare N.C. CONST. art. I, § 6, with VA. CONST. art. III, § 1. 64Wallace, 286 S.E.2d at 84–87. 65State ex rel. State Bldg. Comm’n v. Bailey, 150 S.E.2d 449, 451–57 (W.

Va. 1966). 66Compare W. VA. CONST. art. V, § 1; with VA. CONST. of 1851, art. II,

reprinted in SWINDLER, supra note 11, at 71. 67See infra Part VI for the evolution of the Virginia provision.


state’s separation-of-powers clause to appoint legislators to

serve on the World Congress Center Authority, a board created

to carry out the provisions of a particular statute.68 The Georgia

provision closely tracks Virginia’s, requiring that the powers of

the separate branches be kept “separate and distinct” and also

containing a Personal Separation Clause.69

The Supreme Court of Indiana held that it violated that

state’s separation-of-powers clause70 to appoint legislators to

serve on the State Office Building Commission or any other

executive office or board.71

The Supreme Court of Kansas held that it violates the

implicit separation-of-powers principle in that state’s

constitution for legislators to serve on the State Finance

Council, which exercised extensive executive powers.72 The

court reached this conclusion even though it explicitly rejected

“a strict application of the separation of powers,”73 and even

though it said that legislators could serve on boards and

commissions “where such service falls in the realm of

cooperation” and “there is no attempt to usurp functions of the

executive department.”74 But the court found usurpation where

the legislators served on a council that actually exercised

executive functions.75

The Supreme Court of Colorado held that it violated that

state’s separation-of-powers clause76 to appoint legislators to a

committee to investigate certain claims involving the state’s

legal rights and to authorize the filing of lawsuits to enforce

those rights or to authorize the defense of lawsuits filed against

68Greer v. State, 212 S.E.2d 836, 837-39 (Ga. 1975). 69See GA. CONST. of 1945, art. I, § 1, para. 23 (current version at GA.

CONST. art. I, § 2, para. 23). 70IND. CONST. art. III, § 1. 71Book v. State Office Bldg. Comm’n, 149 N.E.2d 273, 293–97 (Ind. 1958). 72State ex rel. Schneider v. Bennett, 547 P.2d 786, 790–800 (Kan. 1976). 73Id. at 791. 74Id. at 792. 75Id. at 797–98. 76COLO. CONST. art. III.


the state.77 These were executive functions that could not be

entrusted to legislators.78

B. Closely Analogous Decisions

The Supreme Court of Virginia has relied on decisions

interpreting the federal separation of powers in interpreting the

state provisions.79 There is no express separation-of-powers

clause in the federal Constitution; separation of powers is

implied from the separate delegation of legislative, executive,

and judicial powers in Articles I, II, and III.80 From that implicit

principle, the Supreme Court of the United States has concluded

that legislators cannot be vested with the power either to

appoint81 or to remove82 an official performing executive

functions. Power to appoint or remove fell far short of actually

entrusting legislators with those functions, but it interfered

with executive-branch control of the official’s executive

functions.83

The U.S. Supreme Court has not had to decide whether the

general principle of separation of powers precludes legislators

from serving on executive-branch boards, because the federal

Constitution contains an express prohibition: “no Person

holding any Office under the United States, shall be a Member

of either House during his Continuance in Office.”84 But the

Court has reached the same conclusion under general

separation-of-powers principles. It held that appointing

legislators to a committee with an executive function (voting

government-owned corporate stock) violated the implicit

77Stockman v. Leddy, 129 P. 220, 223 (Colo. 1912). 78Id. 79See Taylor v. Worrell Enters., Inc., 409 S.E.2d 136, 139 (Va. 1991)

(plurality opinion) (citing Nixon v. Adm’r of Gen’l Servs., 433 U.S. 425, 443

(1977)). 80See U.S. CONST. arts. I-III. 81Buckley v. Valeo, 424 U.S. 1, 137–41 (1976). 82Bowsher v. Synar, 478 U.S. 714, 721–32 (1986). 83See id. at 726. 84U.S. CONST. art. I, § 6, cl. 2.


separation-of-powers principle of the Philippine Organic Act.85

The District of Columbia Circuit has held that it violates

separation of powers to appoint the Secretary of the Senate and

the Clerk of the House of Representatives as non-voting

members of the Federal Election Commission.86 These were not

members of Congress expressly barred from holding another

federal office. But they were legislative officials whose presence

would inevitably influence other members of the Commission,

thus violating the broader principle of separation of powers:

[W]e cannot conceive why Congress would wish or expect

its officials to serve as ex officio members if not to exercise

some influence. Even if the ex officio members were to

remain completely silent during all deliberations (a

rather unlikely scenario), their mere presence as agents

of Congress conveys a tacit message to the other

commissioners. The message may well be an entirely

appropriate one—but it nevertheless has the potential to

influence the other commissioners.87

The Supreme Court of Arizona held that legislative leaders

could not appoint a majority of the Constitutional Defense

Council, a legislative body with some executive functions, nor

could legislators serve as non-voting advisory members.88 The

court agreed with the D.C. Circuit that even non-voting

members “have the ability to influence the decisions of the

board.”89 Arizona’s separation-of-powers clause is similar to

Virginia’s, requiring that the three departments “shall be

separate and distinct.”90

The Supreme Court of Alaska held that the legislature could

not require legislative confirmation of executive-branch

85Springer v. Gov’t of the Philippine Islands, 277 U.S. 189 (1928). 86Fed. Election Comm’n v. NRA Political Victory Fund, 6 F.3d 821, 826–

27 (D.C. Cir. 1993), cert. dismissed, 513 U.S. 88 (1994). 87Id. at 826. 88State ex rel. Woods v. Block, 942 P.2d 428, 434–37 (Ariz. 1997). 89Id. at 436–37. 90Compare ARIZ. CONST. art. III, with VA. CONST. art. III, § 1.


appointments beyond those for which confirmation was

required by the state constitution.91 This fell far short of

actually putting legislators on executive-branch boards, but it

legislatively interfered with executive control of those boards.

The Supreme Judicial Court of Massachusetts held that it

violates that state’s separation-of-powers clause92 to authorize

legislators to approve or disapprove decisions to hire or promote

employees in the executive branch.93 The Boards of Visitors of

Virginia universities must approve the appointment,

promotion, and salary of every member of the faculty and every

senior administrator;94 a legislator serving as a Visitor would

share in that function.

Two state supreme courts have squarely held it

unconstitutional for legislators to serve on boards of public

universities.95 These decisions were based on state

constitutional clauses specifically prohibiting legislators from

holding other offices, but Virginia’s Personal Separation Clause

also explicitly prohibits any person from exercising the power of

more than one branch at the same time.96 The Supreme Court

of Michigan held that a legislator could not serve on the Board

of Regents of the University of Michigan, even though he had

been elected by the people to both positions.97 This decision was

based on a constitutional clause providing that “[n]o person

elected a member of the legislature shall receive any civil

91Bradner v. Hammond, 553 P.2d 1, 3–8 (Alaska 1976). 92MASS. CONST. pt. 1, art. XXX. 93In re Op. of the Justices, 341 N.E.2d 254, 255-57 (Mass. 1976). 94See, e.g., MANUAL OF THE BOARD OF VISITORS OF THE UNIVERSITY OF

VIRGINIA 2004 at 4-5 (rev. 2019) (summarizing Board’s understanding of its

own responsibilities); Resolutions Adopted by the Board of Visitors June 6–7,

2019, at 11060–76, https://bov.virginia.edu/system/files/public/minutes/%

2719%20JUN%20FULL%20BOARD%20MINUTES%20-%20Corrected%20

6.24.19.pdf (listing personnel actions approved at a single meeting of the

Board). 95Starnes v. Sadler, 372 S.W.2d 585, 586 (Ark. 1963); Att’y Gen. ex rel.

Cook v. Burhans, 7 N.W.2d 370, 371 (Mich. 1942). 96VA. CONST. art. III, § 1; see infra Part V. 97Cook, 7 N.W.2d at 370-71.


appointment within this state . . . .”98 The court expressly

rejected the argument that “regents of the university are not

State officers but only officers of the corporate body known as

the board of regents of the university.”99

Similarly, the Supreme Court of Arkansas held that a

legislator could not serve on the board of Southern State

College.100 This decision was based on a clause providing that

“[n]o Senator or Representative shall, during the term for which

he shall have been elected, be appointed or elected to any civil

office under this State.”101 The court also relied on the state’s

general separation-of-powers provisions, specifically including

its Personal Separation Clause.102

Two other state supreme courts have held that a legislator

may not even be employed by a state university, again relying

on specific provisions addressing that question. When a tenured

professor at Columbus College was elected to the Georgia

legislature, she was forced to resign her position at the

college.103 A Georgia statute provided that “[i]t shall be unlawful

for (a) members of the General Assembly to accept or hold office

or employment in the executive branch of the State

Government, or any agency thereof . . . .”104 The professor

argued that this statute violated her fundamental right to

participate in the political process and to serve in the legislature

if elected.105 Assuming that such a fundamental right exists, the

Supreme Court of Georgia held that the statute served a

compelling government interest by implementing the

separation of powers.106 And the court explicitly held that the

98MICH. CONST. of 1908, art. V, § 1 (current version at MICH. CONST. art.

IV, § 9). 99Cook, 7 N.W.2d at 371. 100Starnes, 372 S.W.2d at 585-86. 101ARK. CONST. art. V, § 10. 102Starnes, 372 S.W.2d at 586 (paraphrasing ARK. CONST. art. IV, § 2). 103Galer v. Bd. of Regents, 236 S.E.2d 617, 618–19 (Ga. 1977). 104Id. at 618 (quoting GA. CODE ANN. § 26-2309 (rev. 1972) (current

version at GA. CODE ANN. § 16-10-9)). 105Id. at 618-19. 106Id. at 619.


college was “an agency of the executive branch of the state

government.”107

The Supreme Court of South Dakota held that a cooperative

extension agent for South Dakota State University could not be

paid during her term in the legislature.108 This decision was

based on a conflict-of-interest clause in the state constitution,

which said that no legislator could be interested, directly or

indirectly, in any contract with the state authorized by any law

passed during the legislator’s term of office.109 The legislature

passed an appropriation for South Dakota State, and that

appropriation was used to pay salaries, thus funding her

employment contract.110 The court did not rely on the general

separation-of-powers clause in the South Dakota constitution.

The Supreme Court of South Carolina has decided the other

way, holding for example that legislators could serve on the

board of the South Carolina Transportation Infrastructure

Bank.111 But the court recognized that South Carolina “is

somewhat singular in the extensive involvement of the

legislature in the powers of the executive and judiciary.”112 And

it quoted a treatise describing “South Carolina’s unique form of

government in which the legislative takes a permanent position

among the three theoretically equal branches of government.”113

Decisions from South Carolina are not precedents for Virginia

or other states that take separation of powers more seriously.

Outside South Carolina, cases across the country agree that

legislators cannot serve in the executive branch, appoint

persons to serve in the executive branch, or otherwise interfere

with the selection of personnel in the executive branch. If the

107Id. at 618. 108Pitts v. Larson, 638 N.W.2d 254 (S.D. 2001). 109S.D. CONST. art. III, § 12. 110Pitts, 638 N.W.2d at 255. 111S.C. Pub. Interest Found. v. S.C. Transp. Infrastructure Bank, 744

S.E.2d 521, 521–28 (S.C. 2013). 112Id. at 526 (emphasis added). 113Id. (quoting JAMES L. UNDERWOOD, THE CONSTITUTION OF SOUTH

CAROLINA, VOLUME 1: THE RELATIONSHIP OF THE LEGISLATIVE, EXECUTIVE,

AND JUDICIAL BRANCHES 13 (1986)) (emphasis added).


legislature wants to regulate the executive, it must do so

through legislation enacted in the usual way and presented to

the governor for signature or veto. It cannot do so by inserting

its members into the executive branch or its processes.

V. Virginia’s Personal Separation Clause

Virginia decisions on the separation of powers have

addressed the broad principle and have not closely parsed the

language of the state Constitution. But that language explicitly

prohibits appointing a member of one branch to exercise the

powers of another. Article III, section 1 provides:

The legislative, executive and judicial departments shall be

separate and distinct, so that none exercise the powers properly

belonging to the others, nor any person exercise the power of

more than one of them at the same time.114

The italicized Personal Separation Clause is a separate and

distinct prohibition. No department may exercise the powers of

either of the other two (the Departmental Separation Clause, in

roman type), and no person may exercise the powers of two

departments at the same time (the Personal Separation Clause,

in italics). Appointing a legislator to an executive-branch agency

or board appears to violate each of these clauses, but it

unambiguously violates the second. The legislator appointed

would be serving in the legislature, exercising the whole power

of a legislator, and also in the executive branch, exercising the

whole power of a Visitor, at the same time.

This Personal Separation Clause is Virginia’s equivalent of

the federal, Michigan, and Arkansas clauses that expressly

prohibit legislators from holding any other office.115 It applies

not just to legislators, but to any person serving in any branch

of government; no person in any branch can simultaneously

serve in either of the other two branches.

Grammatically, the Personal Separation Clause is a

114VA. CONST. art. III, § 1 (emphasis added). 115See U.S. CONST. art. I, § 6, cl. 2; ARK. CONST. art. V, § 10; MICH. CONST.

art. IV, § 9 (discussed supra in text at notes 84, 101, and 98 respectively).


dependent clause, attached to the independent clause that

requires the three departments to be “separate and distinct.”116

For at least two independent reasons, this does not affect the

meaning of the clause. First, the Personal Separation Clause

was grammatically independent, unambiguously a separate

prohibition, through Virginia’s first five Constitutions.117 The

change from independent to dependent clause happened in the

Committee on Final Revision and Adjustment, an editorial

committee with no power to make substantive changes, in the

convention that produced the Constitution of 1902.118 This

change was stylistic, not substantive; the clause still means

what it meant as an independent clause in earlier Constitutions.

The details of this drafting history are set out in Part VI.

Second, even if this Personal Separation Clause is treated as

simply stating a purpose of the Departmental Separation

Clause, it is a purpose that is fully achievable, and it is a

purpose that need never be violated. At the very least, this

language says that the Departmental Separation Clause is to be

interpreted and enforced to the end that no person shall exercise

the powers of two branches at the same time.119 There are

plausible reasons, including checks and balances and the

inevitable overlap of functions, for one branch to sometimes

modestly intrude into the functions of another. There are

reasons for creating modern administrative agencies that

exercise mixed powers with respect to particular subject

matters. The Virginia Constitution therefore authorizes the

creation of administrative agencies “with such authority and

duties as the General Assembly may prescribe”120—but it

carefully does not say with such “personnel” as the legislature

may prescribe. Such administrative agencies may have mixed

functions, but in most cases, some or many of those functions

are clearly executive.

116VA. CONST. art. III, § 1. 117See infra Part VI. 118 See text infra at notes 137-40. 119See VA. CONST. art. III, § 1. 120Id.


Neither of these reasons, nor any other reason, can justify

electing or appointing the same individual to serve in two

branches of government at the same time. There are more than

six million adult Virginians available to serve,121 and many of

them would be qualified. To appoint legislators to executive-

branch boards would be violating separation of powers for the

sake of the violation—for the very purpose of imposing

legislative influence or control on an executive-branch function.

The violation would seem obvious and flagrant if a legislator

were appointed or elected to serve on the Supreme Court, or as

Governor, or as Secretary of an executive-branch department.

The violation should be equally obvious, and it is equally

flagrant, when a legislator is appointed to a Board of Visitors.

Each Visitor exercises part of the executive-branch function,

and any hope that other members of the Board might proceed

uninfluenced by the legislative intrusion is delusional. Of course

they would be influenced; as the D.C. Circuit said, that would

be the very purpose of appointing a legislator in the first

place.123

VI. The Evolution of Virginia’s Separation-of-Powers Clauses

Virginia’s Separation of Powers Clauses have evolved

stylistically over the years, but there has been little substantive

change. For much of Virginia’s history as a state, the Personal

Separation Clause was grammatically an independent clause.

The Constitution of 1776 provided:

The legislative, executive, and judiciary department,

shall be separate and distinct, so that neither exercise the

powers properly belonging to the other: nor shall any

person exercise the powers of more than one of them, at the

121See Quick Facts Virginia, U.S. CENSUS BUREAU,

https://www.census.gov/quickfacts/fact/table/VA,US/PST045218 (noting that

the total estimated population in Virginia is 8,517,685 and that

approximately 22% of that population is under 18). 123See supra note 87 and accompanying text.


same time; except that the Justices of the County Courts

shall be eligible to either House of Assembly.124

This 1776 text clearly contains an independent clause that

prohibits any person from exercising the powers of two branches

at the same time.125 The express exception for county judges

further confirms this meaning; without the express exception,

these judges could not have served in two branches at the same

time.126

This provision was carried forward with minor stylistic

tweaks in the Constitution of 1830. “[D]epartment” in the first

line was changed to “departments;” “the other” was changed to

“either of the others” and the colon after this phrase was

changed to a semicolon; the commas after “department” and

after “one of them” were omitted; the semicolon after “same

time” was changed to a comma; and the capitalization was

dropped in the exception for county judges.127 None of these

changes affected meaning, and the Personal Separation Clause

was still an independent clause. The provision now read:

The legislative, executive, and judiciary departments

shall be separate and distinct, so that neither exercise the

powers properly belonging to either of the others; nor

shall any person exercise the powers of more than one of

them at the same time, except that the justices of the

county courts shall be eligible to either house of

assembly.128

In the Constitution of 1851, the reference to “justices of the

124VA. CONST. of 1776 (emphasis added), reprinted in SWINDLER, supra

note 11, at 52. 125See id. 126See id. 127Compare VA. CONST. of 1830, art. II, reprinted in SWINDLER, supra note

11, at 59, with VA. CONST. of 1776, art. II, reprinted in SWINDLER, supra note

11, at 52. 128VA. CONST. of 1830, art. II (emphasis added), reprinted in SWINDLER,

supra note 11, at 59.


county courts” was changed to “justices of the peace;” there was

no change in the clauses of interest here.129 That version was

carried forward verbatim in the Constitution of 1864.130 In the

Constitution of 1870, the exception for justices of the peace was

reduced to a cross reference; there was no other change:

The legislative, executive, and judiciary departments shall

be separate and distinct, so that neither exercise the powers

properly belonging to either of the others; nor shall any person

exercise the power of more than one of them at the same time,

except as hereinafter provided.131

No exception was later provided; no provision in the

Constitution of 1870 authorizes any person to serve in two

branches at the same time.132

Through each of these five Constitutions, the prohibition on

any person serving in two branches at the same time was

unambiguously a freestanding and independent prohibition. In

the 1901 Convention, which proposed and enacted the

Constitution of 1902,133 the relevant substantive committee

proposed to continue verbatim the separation-of-powers

language of the 1870 Constitution, and its report mentioned no

changes to the relevant clauses.134 That committee’s proposals

129Compare VA. CONST. of 1851, art. II, reprinted in SWINDLER, supra note

11, at 71, with VA. CONST. of 1830, art. II, reprinted in SWINDLER, supra note

11, at 59. 130VA. CONST. of 1864, art. II, reprinted in SWINDLER, supra note 11, at

94. 131VA. CONST. of 1870, art. II (emphasis added), reprinted in SWINDLER,

supra note 11, at 116. 132See VA. CONST. of 1870, reprinted in SWINDLER, supra note 11, at 112-

41. 133Leroy Rountree Hassell, Sr., The Evolution of Virginia’s Constitutions:

A Celebration of the Rule of Law in America, 20 REGENT U. L. REV. 1, 11

(2007). 134See JOURNAL OF THE CONSTITUTIONAL CONVENTION (1901). The

provision was assigned to the Committee on Preamble and Bill of Rights, the

Division of Governmental Powers and on Such Portions of the Constitution

as Shall Not Be Referred to Other Committees. Committee reports are

reprinted in the back of the Journal of the Constitutional Convention; they

are not continuously paginated and so cannot be cited by page number. The

Committee on Preamble etc. filed four reports, one of which is a minority


were considered by the Committee of the Whole,135 and then by

the Convention,136 each of which also retained the 1870

language verbatim.137 The Personal Separation Clause was still

an independent clause.

That draft was then referred to the Committee on Final

Revision and Adjustment. This committee was an editorial

committee, not a substantive committee. It reported that it had

“observed the rule of making no changes in the articles as they

were adopted by the Convention, except such as are necessary

or proper to give greater clearness and conciseness to the

expression of what is believed to be the true intent and meaning

of the Convention.”138 And it said that “no substantial change

in, or addition to, the instrument has been made, except when

such amendments were clearly necessary to the efficient

operation of the articles as they came to us from the

Convention.”139

The change from independent to dependent clause happened

in the Committee on Final Revision and Adjustment. The cross

reference was moved from the end to the beginning, the verb

necessary to an independent clause was omitted, and the two

clauses were combined by changing the semicolon to a comma:

Except as hereinafter provided, the legislative, executive and

report, and one of which is simply the Committee’s proposed constitutional

text. None of the four reports discusses the separation of powers. 135See Report of the Committee on Preamble and Bill of Rights, the

Division of Governmental Powers and on such Portions of the Constitution as

shall Not Be Referred to Other Committees, as Amended by the Committee of

the Whole, in JOURNAL OF THE CONSTITUTIONAL CONVENTION (1901); see also

II REPORT OF THE PROCEEDINGS AND DEBATES OF THE CONSTITUTIONAL

CONVENTION 2097–139, 2578–624 (1906) (containing the discussion in the

Committee of the Whole). 136See PROCEEDINGS AND DEBATES, supra note 135, at 2745–59

(containing the Convention’s discussion of the Committee’s report as

amended by the Committee of the Whole). 137DRAFT OF THE CONSTITUTION OF VIRGINIA AS FINALLY ADOPTED BY THE

CONVENTION AND REFERRED TO THE COMMITTEE ON FINAL REVISION AND

ADJUSTMENT OF THE VARIOUS PROVISIONS OF THE CONSTITUTION THAT MAY BE

AGREED UPON, AND UPON THE SCHEDULE 5 (1902). 138PROCEEDINGS AND DEBATES, supra note 135, at 3097. 139Id.


judiciary departments shall be separate and distinct, so that

neither exercise the powers properly belonging to either of the

others, nor any person exercise the powers of more than one of

them at the same time.140

The entire Convention then reviewed the Committee’s draft

section by section,141 and the Separation of Powers Clause as

modified by the Committee on Final Revision and Adjustment

became the clause in the Constitution of 1902.142 Once again, no

later section created any exception to the Personal Separation

Clause.143

Clearly this change in the Committee on Final Revision and

Adjustment was understood as stylistic, not substantive. The

change could not possibly have been understood as a

substantive change “clearly necessary to the efficient operation

of the articles.”144 The Committee offered no explanation for the

change; it did not suggest any change in meaning, however

slight or nuanced. The change was stylistic, and the

Constitution is best understood as still containing an

independent prohibition on the same person serving in two

branches at the same time.

The Commission on Constitutional Revision, whose report

led to the Constitution of 1971, reviewed the history of the

separation-of-powers provisions in Virginia’s constitutions.145

Describing the changes from 1776 to 1969, the Commission said:

“Since 1776 the language of the section has changed in two

regards: the elimination of the special exception regarding

county courts, and the addition of the qualifying clause, found

140THE DRAFT OF THE CONSTITUTION AND SCHEDULE AS REPORTED TO THE

CONVENTION BY THE COMMITTEE ON FINAL REVISION AND ADJUSTMENT 17

(1902) (emphasis added). 141See PROCEEDINGS AND DEBATES, supra note 135, at 3260–63. 142VA. CONST. of 1902, art. III, § 39, reprinted in SWINDLER, supra note

11, at 153. In the Constitution of 1902, sections were numbered continuously

from article to article. 143See id. §§ 40–197. 144PROCEEDINGS AND DEBATES, supra note 135, at 3097 (emphasis

added). 145THE CONSTITUTION OF VIRGINIA: REPORT OF THE COMMISSION ON

CONSTITUTIONAL REVISION 121 (1969).


in present section 39, ‘Except as hereinafter provided.’”146 The

Commission did not treat the change from an independent to a

dependent clause as a change.

In the Constitution of 1971, the cross reference to possible

but non-existent exceptions was dropped. The word “neither”

was changed to “none,” and “either of the others” was simplified

to just “the others.”147 And a provision was added

“acknowledging the existence of regulatory agencies which are

not solely legislative, or executive, or judicial.”148 The language

relevant here was unchanged. And so we have the current

provision, which reads in full:

The legislative, executive, and judicial departments shall

be separate and distinct, so that none exercise the powers

properly belonging to the others, nor any person exercise

the power of more than one of them at the same time;

provided, however, administrative agencies may be

created by the General Assembly with such authority and

duties as the General Assembly may prescribe.

Provisions may be made for judicial review of any finding,

order, or judgment of such administrative agencies.149

The italicized Personal Separation Clause should be treated

as an independent and free standing prohibition, as it always

had been before the stylistic tweak in 1902. But even treating it

as a dependent clause, it states a fundamental purpose of the

entire provision. Powers shall be separate and distinct “so that”

no person exercises the power of more than one branch at the

same time.150 This clause squarely prohibits any legislator from

serving on an executive-branch board, including a Board of

Visitors.

146Id. 147Compare VA. CONST. art. III, § 1, with VA. CONST. of 1902, art. III, §

39, reprinted in SWINDLER, supra note 11, at 153. 148 COMMISSION ON CONSTITUTIONAL REVISION, supra note 145, at 122. 149VA. CONST. art. III, § 1 (emphasis added). 150Id.


VII. The General Assembly’s View,

and Some Counter Arguments

As noted at the beginning, the General Assembly has

generally recognized the impropriety of its members serving on

executive-branch boards “responsible for administering

programs established by the General Assembly.”151 The statute

expressly forbids such appointments and declares any other

statutes that may provide for such appointments to be void.152

But this latter provision merely forces any exceptions to be

codified in the same statutory section that creates the

prohibition, and the Assembly has enacted a number of express

exceptions to this principle.153

The mere fact that these exceptions have existed, and that

no one has challenged them, does not mean that they are

constitutional. It means only that no one has seriously

considered the question and that the courts have had no

occasion to rule. The North Carolina court considered a similar

situation when it held that legislators could not serve on an

executive-branch board.154 The litigants defending such

appointments in North Carolina listed forty-nine other boards

and commissions with legislative members.155 The court ruled

only with respect to the one board in the case before it.156 But it

squarely rejected the relevance of the other forty-nine; the fact

that it had become somewhat common to appoint legislators to

boards and commissions did not make it consistent with

separation of powers or foreclose adjudication of the issue when

it was finally presented to the courts.157 Similarly in the South

Dakota case, it did not matter that “other state employees have

served in the legislature in the past.”158

151VA. CODE ANN. § 2.2-2101 (Supp. 2019). 152Id. 153Id. 154State ex rel. Wallace v. Bone, 286 S.E.2d 79, 88 (N.C. 1982). 155Id. 156See id. 157Id. 158Pitts v. Larson, 638 N.W.2d 254, 259 (S.D. 2001) (Gors, J., concurring).


In 2016, the General Assembly attempted to create another

exception, providing that legislators and persons appointed by

legislators would constitute a majority of the Virginia Growth

and Opportunity Board.159 The Attorney General advised the

Governor that this structure would probably be

unconstitutional,160 and the Assembly enacted a new bill

providing for legislators to be a minority of the board.161 There

is no negative implication in this Attorney General opinion that

legislators on the Board would be permissible if legislators were

a minority of the Board, or if only one legislator served on the

Board. The Attorney General answered the only question he

was asked, about a particular proposed statute that provided for

majority control by the legislature.162 He expressed no opinion

on any lesser number of legislators filling executive-branch

positions.

If legislators could be appointed to multi-member bodies in

the other two branches so long as they did not constitute a

majority, little would be left of separation of powers. Recall that

the D.C. Circuit and the Supreme Court of Arizona held that

even non-voting members violated separation of powers,

because their only plausible purpose was to intrude legislative

influence into an executive-branch body.163 Suppose that a

legislator, or three legislators, were appointed to the Virginia

Supreme Court. No one would say that it doesn’t matter because

they would be only one or three votes on a seven-judge court. It

is no different if a legislator is appointed to be one member of a

Board of Visitors.

Finally, there is an overlapping provision in article IV,

section 4, which states the qualifications of legislators and

explicitly prohibits holders of certain offices from serving in the

legislature:

159H.B. 834, 2016 Gen. Assemb., Reg. Sess. (Va. 2016). 1602016 OP. VA. ATTY. GEN. 16-013. 161See VA. CODE ANN. § 2.2-2485 (2017). 162See 2016 OP. VA. ATT’Y GEN. 16-013. 163Fed. Election Comm’n v. NRA Political Victory Fund, 6 F.3d 821, 826

(D.C. Cir. 1993), cert. dismissed, 513 U.S. 88 (1994); State ex rel. Woods v.

Block, 942 P.2d 428, 436–37 (Ariz. 1997).


No person holding a salaried office under the government

of the Commonwealth, and no judge of any court, attorney

for the Commonwealth, sheriff, treasurer, assessor of

taxes, commissioner of the revenue, collector of taxes, or

clerk of any court shall be a member of either house of the

General Assembly during his continuance in office; and

his qualification as a member shall vacate any such office

held by him.164

Most of the offices specifically mentioned are local offices,

and the Separation of Powers Clauses arguably refer only to the

powers of the Commonwealth; the prohibition on holding

certain combinations of state and local offices adds something

that is not unambiguously there in the Separation of Powers

Clauses. But the first phrase of article IV, section 4, providing

that “[n]o person holding a salaried office under the government

of the Commonwealth” may serve in the legislature appears to

be redundant with the two Separation of Powers Clauses.165

Considered in isolation, it might give rise to a negative inference

that persons holding unpaid offices may serve in the legislature,

and carrying it one step further, that legislators might be

appointed to unpaid offices in the executive branch.

But this reading would strip any meaning out of the Personal

Separation Clause in article III as that clause applies to the

legislature. It would permit legislators to serve in any unpaid

office in either of the other branches of government. It is clear

that the Constitution’s drafters were not avoiding redundancy

in this area, or adhering to any drafting convention that each

word or clause must add some meaning independent of all the

others. Each clause must mean something, but the meanings

may overlap. We know this because they repeated the

Departmental Separation Clause, almost verbatim, in article I,

164VA. CONST. art. IV, § 4. 165Id.


section 5166 and article III, section 1.167 Article IV, section 4 is

about the qualifications of legislators and the intrusion of other

office holders into the legislature.168 The application of article

III, section 1 under discussion here is about the converse: the

intrusion of legislators into the other branches. Article IV,

section 4 does not address that question.169

There is an Opinion of the Attorney General allowing a

legislator to serve for ninety days as a temporary assistant

Commonwealth’s attorney, on the ground that that position is

not mentioned in article IV, section 4.170 The Attorney General

treated this as a local office and not as “a salaried office under

the government of the Commonwealth.”171 Perhaps because he

viewed the office as local, or perhaps because he was asked only

about article IV, section 4, the opinion does not mention either

Separation of Powers Clause and is not an interpretation of

those clauses.172 The opinion relies in part on a Supreme Court

decision interpreting a similar provision in article VII, section

6, which prohibits dual office holding in local government.173

The court in that case did not mention the Separation of Powers

Clauses either, and it explicitly refused to consider another

constitutional clause that one side relied on.174 It read the

implementing statute at issue as based exclusively on article

VII, section 6 and as confining the dispute to that section.175

Perhaps the most relevant thing the court said is that it

would follow the plain meaning of article VII, section 6: “[w]hen

the language of an enactment is plain and unambiguous, as in

this case, we apply its plain meaning.”176 Other Virginia cases

166VA. CONST. art. I, § 5. 167Id. art. III, § 1. 168Id. art. IV, § 4. 169See id. 1702002 OP. VA. ATTY. GEN. 02-024, https://www.oag.state.va.us/files/

opinions/2002/02-024.pdf. 171Id. 172See id. 173See id. (citing Bray v. Brown, 521 S.E.2d 526, 527 (Va. 1999)). 174Bray, 521 S.E.2d at 528. 175Id. 176Id. at 527.


also emphasize adherence to the plain meaning of the

constitutional text.177 And article III, section 1 plainly prohibits

any one person from exercising the powers of more than one

branch of government at the same time.178 The three great

branches of government shall be separate and distinct so that

none exercise the powers of the others and so that no person

exercises the power of more than one of them at the same time.

This language should be enforced according to its terms.

Conclusion

Appointing a legislator to a Board of Visitors would violate

the separation of powers. It would violate the Departmental

Separation Clauses by intruding into and influencing executive-

branch functions. And it would flagrantly violate the Personal

Separation Clause by permitting the same person to exercise

the whole power of a legislative position and the whole power of

an executive-branch position at the same time.

177See, e.g., Blount v. Clarke, 782 S.E.2d 152, 155 (Va. 2016); Town of

Madison, Inc. v. Ford, 498 S.E.2d 235, 236 (Va. 1998); Scott v.

Commonwealth, 443 S.E.2d 138, 141 (Va. 1994); Harrison v. Day, 106 S.E.2d

636, 644 (Va. 1959). 178VA. CONST. art. III, § 1.

LEGISLATORS ON EXECUTIVE-BRANCH BOARDS ARE ... › system › files › faculty › ... ·...

Documents

Transcript of LEGISLATORS ON EXECUTIVE-BRANCH BOARDS ARE ... › system › files › faculty › ... ·...